An English solicitor’s guide to the Portuguese estate on your desk

What your English grant does — and does not — do in Portugal

An English grant proves the personal representative’s title over the English estate. Portugal is not a reseal jurisdiction: there is no procedure to stamp your grant and use it against a Portuguese land registry or bank. Portuguese assets move only through Portuguese machinery. Two practical consequences. First, nothing in Portugal waits for your grant — the two legs can run in parallel, and usually should. Second, the Portuguese leg is not a lesser copy of yours: it has its own proof of heirship, its own tax filing with its own deadline, and its own registrations. Where the grant helps at all, it is as supporting evidence — with a certified Portuguese translation and, in practice, an FCDO apostille — but Portuguese title to Portuguese assets comes from the Portuguese process below, never from the grant.

The Portuguese sequence, in one paragraph each

Habilitação de herdeiros. The notarial deed that establishes who the heirs are — Portugal’s answer to your grant, but built on civil-law heirship rather than executorship. Prepared from the death certificate, the civil-status documents and the will (yours, translated, if it governs), and declared before the notary in the statutory form — by the head of the estate (the cabeça de casal, an office Portuguese law assigns by a fixed hierarchy, the surviving spouse first). In practice no heir needs to travel to Portugal — but here is the one step that happens at your end, not ours: each signing heir grants a power of attorney with special powers, executed before a notary public in England and sealed with the FCDO apostille. We draft the power bilingually and send it ready to sign; your office (or the family’s local notary) oversees the execution and the apostille — a morning’s errand, and the single most common cause of delay when it drifts. Everything after that happens here, and each heir’s Portuguese tax number (NIF) is obtained for them wherever in the world they live.

The stamp-duty return (Imposto do Selo). Portugal abolished inheritance tax as such; what remains is stamp duty, and it works like this: a flat 10% on what each beneficiary receives — from which the spouse (and qualifying de facto partner), descendants and ascendants are wholly exempt — and the flat 10% is the whole of it on death — the 0.8% of TGIS verba 1.1 belongs to lifetime gifts of Portuguese real estate (where it is payable even by otherwise-exempt close family), not to transmissions on death. Exempt or not, the estate must be declared to the Portuguese tax authority — the Modelo 1 with its schedule of assets — by the end of the third month after the month of death: a death in January must be declared by 30 April (art. 26(3) of the Stamp Duty Code; a month-end rule, not ninety days) — and no bank will release a euro until it has been. If you take one date from this page, take this one: the clock is usually already running by the time the file reaches your desk.

Registration and release. With heirship established and the tax position settled, the property is registered into the heirs’ names at the land registry and the bank accounts are released — the bank pays the heirs directly. One structural difference worth a sentence in your client-care letter: Portuguese practice has no client account and no undertakings culture. We never hold client or estate money — each third-party cost (the notary, the registry, the tax office) is paid by your client directly to the official body, on a payment instruction we prepare: who, how much, and the exact reference. The estate itself moves bank-to-heir.

Sale, if the family wishes. Only after registration can the heirs sell — and if a sale is the plan, flag the tax early so nobody is surprised at completion. Portuguese capital-gains tax reaches the gain since the death, because the acquisition basis is the stamp-duty value at the date of death, not the English probate valuation. And since 2023 every non-resident seller — UK residents included — is taxed like a resident: half the gain, at the progressive scale, with worldwide income counted only to set the rate; the old flat 28% on the whole gain is gone. Where we act on the sale we prepare the sale-year return; the wider tax position, and the tax at home, stay with an adviser.

Where the law of succession itself crosses the border

Start with why any of this reaches your British client at all: the assets do it. A Portuguese immovable can only change hands through the Portuguese machinery above — no English grant, order or undertaking moves a Portuguese title — and a Portuguese bank account opens only to the Portuguese process. Once a Portuguese authority is involved, the EU Succession Regulation (650/2012, “Brussels IV”) tells it whose law governs — and the Regulation binds Portugal, not the deceased: it applies to every succession opened before Portuguese authorities, whatever the nationality, and with universal effect, so the law it designates governs even where that law is English. Brexit changed nothing on the Portuguese side of the border. The default rule is the law of the deceased’s habitual residence at death; a will may instead elect the law of the deceased’s nationality.

The retiree who died resident in Portugal. Habitual residence was Portugal, so by default Portuguese law governs the whole succession — including its forced-heirship rules — regardless of what the English will says. Before you advise the family on shares, check the will for a choice-of-law clause electing English law; with one, the English dispositions stand. Without one, the reserved portions of Portuguese law sit over the estate.

The Manchester client with an Algarve flat. Habitual residence was England, so English law is the starting point — but here sits the trap for the well-read: because the United Kingdom is a third state, the Regulation’s renvoi rule (Article 34, Reg. 650/2012) lets English private international law speak, and English conflict rules refer immovables to the law of the place they stand — the lex situs rule. A fair question is where that rule is written down, and the answer matters: in no statute. It is the settled common law of English private international law — Nelson v Bridport (1846) 8 Beav 547, Philipson-Stow v IRC [1961] AC 727 — stated as the standing rule in Dicey, Morris & Collins; and art. 34(1)(a) accepts precisely that kind of referral back to a Member State’s law. Nor is the point England-only: an owner resident in any common-law third state — Ireland, the United States, Canada, Australia — raises the same art. 34 analysis, because those systems share the lex situs rule. And there sits the key to this whole page: the Algarve flat is both the reason a Portuguese file must be opened at all, and the asset Portuguese succession law can reclaim. The flat can be sent back to Portuguese succession law — a split estate: Portuguese law for the flat, English law for the movables. A choice-of-law election in the will excludes renvoi (art. 34(2)) and restores certainty. And on a full intestacy there is nothing to elect: the referral runs unopposed, and the flat passes under Portuguese intestacy rules, legítima included — the mirror image of Re Collens [1986] Ch 505, where the English land of a Trinidad-domiciled deceased passed under English law by exactly the same logic. One drafting point for the will at home: make the election name the law of England and Wales — the Regulation treats the UK as a state of several legal systems, and “British law” names none of them. This analysis is short but load-bearing; it is the first thing we check on any file — and precisely the kind of point on which we give a written, signed certificate of law — included when we handle the estate, otherwise a separate fixed fee quoted before any work. And one thing the election never does: it moves no Portuguese formality — the habilitação, the stamp-duty clock and the registrations run in full whichever law governs; the election only settles who takes, and hands the notary an English law he will want formally proven.

What this costs, and who does what

You stay lead: the English estate, the will, the family relationship, your fees — untouched. The Portuguese leg runs at published fixed prices — transferring a Portuguese property after a death is €4,000 + VAT; a cross-border estate €6,500–€8,500 + VAT — agreed in writing before work begins, with third-party costs shown to your client up front. Where the Portuguese notary or registry needs formal proof of English law (or, on the English side, the Probate Registry needs proof of Portuguese law under NCPR r.19 — where, since November 2020, a witness statement suffices in place of a sworn affidavit), we produce the certificate in-house, from €1,200 — because the same lawyer is qualified and registered on both sides of the question. How instructing us works, and why we cannot take your client, is on our page for solicitors and professional advisers.

What to send us on day one

The death certificate; the will (no translation needed — we handle it); a note of the Portuguese assets as best the family knows them (address of the property, bank name); the heirs’ names and where they live; and whether anyone plans to sell. That is enough for a written fixed quote. Please don’t hold the file until it is complete — the stamp-duty clock may already be running.

What we organise together

Two pieces of the file sit naturally between your office and ours, and they go smoothly when both ends know their part from the start. First, the power of attorney: we draft it, bilingual and ready to sign; your end oversees the family’s execution before a notary public and the FCDO apostille — then it travels here, and everything else follows without anyone boarding a plane. Second, money: prepare your client for a system without a client account — our fees are invoiced in instalments at the milestones, and every third-party cost is paid by the client directly to the official body on a payment instruction we prepare. No undertakings, no funds passing through anyone’s hands, the estate itself moving bank-to-heir. Set those two expectations in the first client meeting and the whole file feels orderly rather than foreign.

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